The Week in Federal Appellate Jurisdiction: August 16–22, 2020

Last week saw a new split on whether the government can appeal the denial of its motion to dismiss a qui tam suit. The Eleventh Circuit held that a defendant could not appeal the denial of a renewed challenge to the plaintiff’s proceeding anonymously. Sitting en banc, that court also addressed its caselaw on the scope of certain immigration appeals. The Sixth Circuit held that an unspecified award of punitive damages precludes finality. The Ninth Circuit heard an appeal from a garnishment order entered in ongoing post-judgment proceedings. Plus another decision on the scope of immigration appeals, Rule 3(c)’s order-designation requirement for notices of appeal, appealing dismissals without prejudice, appealing administrative remands, an improper qualified-immunity appeal, and the effect on the appeal clock of non-substantive amendments to a judgment.

• New Split on Appealing Denials of Qui Tam Dismissals
• The Eleventh Circuit Lacked Jurisdiction to Review a Plaintiff’s Proceeding Anonymously
• The En Banc Eleventh Circuit on the Limited the Scope of Certain Immigration Appeals
• The Sixth Circuit Held That an Unspecified Award of Punitive Damages Precludes Finality
• The Ninth Circuit on Appeals From Garnishment Orders
• The Third Circuit on Reviewing the Refusal to Consider Late-Filed Immigration Appeals
• The Fifth Circuit on Designating a Denial of Reconsideration in a Notice of Appeal
• Quick Notes

New Split on Appealing Denials of Qui Tam Dismissals

In United States v. UCB, Inc, the Seventh Circuit held that the United States could immediately appeal from an order denying its motion to dismiss a qui tam suit. In doing so, the court effectively split with the Ninth Circuit, which recently held that these denials are not immediately appealable.

UCB involved a qui tam suit against pharmaceutical companies, alleging that they paid physicians to prescribe or recommend a particular drug. The United States declined to intervene. It instead moved to dismiss the suit, arguing that the claims “lack[ed] sufficient merit to justify the cost of investigation and prosecution and otherwise [were] contrary to the public interest.”

The district court denied this motion. The court thought that the government’s evaluation of the claims was insufficient, and it suspected “animus towards the relator.” The district court accordingly concluded “that the government’s decision to dismiss was ‘arbitrary and capricious’ and ‘not rationally related to a valid governmental purpose.’”

The government then appealed. On appeal, it argued that appellate jurisdiction was proper under the collateral-order doctrine.

The Seventh Circuit declined to address the collateral-order argument. It noted that decisions under the collateral-order doctrine are supposed to be categorical. Courts should decide whether a particular kind of order is always (or never) appealable under the doctrine, ignoring any case-specific considerations. The type of order at issue in UCB was quite rare—in the last 30 years, district courts have rejected the government’s motion to dismiss a quit tam suit only twice. And “[t]he power of a non-party to force dismissal of another’s lawsuit is otherwise unheard of in our law.”

The Seventh Circuit instead held that the government’s motion to dismiss was, in substance and form, a motion to intervene. As for substance, the government “want[ed] a say—the final say—in conducting this lawsuit.” That’s intervention:

An intervenor comes between the original parties to ongoing litigation and interposes between them its claim, interest, or right, which may be adverse to either or both of them. That is exactly what the government wants to do here. The government claims a superior right to dispose of this lawsuit between the relator and the defendants by ending it on terms it deems suitable.

So “denying [the government’s] wish [was] in substance an order denying a motion to intervene.” As for form, a thorough parsing of the statutory text showed that the government must intervene to voluntarily dismiss a suit; it cannot decline to intervene and then move to dismiss.

So the government’s motion to dismiss was necessarily a motion to intervene. When the district court “concluded that the government’s case for dismissal was not even rational, [it] necessarily expressed its view on the government’s lack of ‘good cause’ to intervene.” And litigants can immediately appeal from denials of intervention. The Seventh Circuit accordingly had jurisdiction.

In a footnote, the Seventh Circuit addressed the Ninth Circuit’s recent decision on this jurisdictional issue. In United States v. Academy Mortgage Co., the Ninth Circuit held that the government could not appeal the denial of its motion to dismiss when the government had not intervened. The Seventh Circuit noted that the Ninth Circuit “was not presented with and did not consider the possibility of treating the government’s motion to dismiss as a motion both to intervene and to dismiss.” Still, the decisions reached inconsistent outcomes. But given the apparent rarity with which district courts deny the government’s motion to dismiss a qui tam suit, this split might not amount to much.

United States v. UCB, Inc, 2020 WL 4743033 (7th Cir. Aug. 17, 2020), available at the Seventh Circuit and Westlaw.

The Eleventh Circuit Lacked Jurisdiction to Review a Plaintiff’s Proceeding Anonymously

In S.B. v. Florida A&M University, the Eleventh Circuit held that it lacked jurisdiction to review an order allowing a plaintiff to proceed anonymously.

The plaintiff in S.B. had been raped three times while a student at Florida A&M. She sued the university, pleading claims under Title IX and common law negligence. The university eventually (in its third motion to dismiss) objected to the plaintiff’s proceeding under a pseudonym. The district court rejected that argument and granted the plaintiff’s cross-motion to proceed anonymously.

Several months later, the university again objected to the plaintiff’s proceeding under a pseudonym and sought to use her full name at trial. The district court denied this motion, too. Any concern the defendant had about prejudicing the jury could be handled through addressing the jury and jury instructions. Concerns over negative publicity were misplaced, as the university “itself was not accused of committing a sex crime.” And nothing had changed between the earlier ruling and the university’s new motion:

Without summarizing this Court’s previous Order, this Court finds that nothing has changed since the issuance of that Order, and that Plaintiff still has a substantial privacy right which outweighs the customary and constitutionally embedded presumption of openness in judicial proceedings.

(Cleaned up.) The university then appealed, challenging this second decision on anonymity.

The Eleventh Circuit held that it lacked jurisdiction over the appeal. As a preliminary matter, it was not at all clear that parties can appeal from orders granting leave to proceed anonymously. Courts have held that the denial of a request to proceed anonymously is an immediately appealable collateral order. That’s because an erroneous denial of anonymity is not effectively reviewable after a final judgment; “the identities of the plaintiffs, once revealed, cannot again be concealed,” and anonymity’s protections are forever lost. (Cleaned up.) But an erroneous grant of anonymity could be effectively reviewed in an appeal from a final judgment.

Regardless of whether these decisions are generally appealable, the Eleventh Circuit saw an additional—and insurmountable—jurisdictional hurdle in S.B.: timeliness. “[W]hen a court re-enters a judgment without altering the substantive rights of the parties, the entry of the second judgment does not affect the time within which a party must appeal the first order.” And the district court’s second decision “did not disturb or revise legal rights settled by the first order,” as the district court’s initial grant of leave to proceed anonymously did not limit that right to any particular phase of litigation.

The university’s raising new arguments in its second challenge to anonymity did not change the jurisdictional analysis. To hold otherwise would create a massive loophole in the general rule against reviving the time to appeal:

The upshot of FAMU’s argument is that a litigant could avoid the deadline to appeal a collateral order by raising, at any time, new arguments on an issue that has already been decided. We decline FAMU’s invitation to sanction this type of end run around Rule 4’s filing deadlines.

The Eleventh Circuit accordingly dismissed the appeal as untimely.

S.B. v. Florida A&M University, 2020 WL 4747758 (11th Cir. Aug. 17, 2020), available at the Eleventh Circuit and Westlaw.

The En Banc Eleventh Circuit on the Limited the Scope of Certain Immigration Appeals

In Patel v. U.S. Attorney General, the en banc Eleventh Circuit overruled its cases permitting appellate review of non-legal, non-constitutional issues in certain immigration appeals.

The petitioner in Patel admitted that he was deportable but sought adjustment of status under 8 U.S.C. § 1255(i). That statute gives the government discretion to chance someone’s status to that of a lawful permanent resident if certain requirements are met.

The only requirement at issue in Patel was whether the petitioner had shown “clearly and beyond doubt” that he was not inadmissible. That’s because when the petitioner applied for a driver’s license, he checked a box indicating that he was a U.S. citizen. Before the immigration judge, the petitioner argued that he lacked the requisite intent to misrepresent his citizenship status. That is, his checking the box was a mistaken, not an intentional, misrepresentation. He further argued that any misrepresentation was not material, as non-citizens can obtain drivers’ licenses. But the immigration judge rejected these arguments. The Board of Immigration Appeals affirmed, and the petitioner sought further review in the Eleventh Circuit.

A panel of the court held that it lacked jurisdiction to review whether the petitioner had the intent necessary to misrepresent his citizenship status. But the Eleventh Circuit granted rehearing en banc to reexamine that issue.

The majority and dissenting opinions are lengthy—too lengthy for an in-depth analysis here. But the disagreement boiled down into what immigration’s jurisdiction-stripping provisions mean when they bar appellate review of “any judgment regarding the granting of relief under” a variety of statutes. More specifically, does “any judgment” encompass any decision the Board of Immigrations Appeals made in the course of denying discretionary relief (including factual findings)? Or does it apply only to the discretionary aspects of that denial—those that involved the Board exercising its judgment?

The majority adopted the first interpretation: it lacked jurisdiction to review any decision relating to the denial of discretionary relief, except insofar as the petitioner raises constitutional or legal challenges. (Another provision of immigration’s jurisdiction-stripping provisions restores jurisdiction over constitutional and legal issues.) In Patel, that meant no review of the factual conclusions the Board reached in denying relief, including whether the petitioner had the requisite intent to misrepresent his citizenship.

The dissent contended that the term “any judgment” referred to the discretionary aspects of the Board’s decision. After all, the Board often makes both discretionary decisions (such as whether a petitioner’s conditions constitute an extreme and unusual hardship) and non-discretionary ones (such as whether a petitioner satisfies statutory or regulatory requirements and is thus eligible for relief). That means the court can review erroneous factual findings, as finding facts does not involve any exercise of discretion. In Patel, that would have meant the court could review the Board’s finding as to the petitioner’s intent.

Patel v. U.S. Attorney General, 2020 WL 4873196 (11th Cir. Aug. 19, 2020), available at the Eleventh Circuit and Westlaw.

The Sixth Circuit Held That an Unspecified Award of Punitive Damages Precludes Finality

In Beanstalk Innovation, Inc. v. SRG Technology, LLC, the Sixth Circuit held that a district court decision is not final if it leaves open the amount of punitive damages to be awarded.

Beanstalk Innovation involved an action to enforce a settlement agreement. In addition to seeking the amount it was owed under the agreement, the plaintiff also sought prejudgment interest, attorneys’ fees, and punitive damages. The district court granted the plaintiff’s motion for summary judgment—awarding over $100,000 in compensatory damages—but left for later resolution the amount of interest, costs, fees, and punitive damages. But before the district court could determine those amounts, the defendant moved to dismiss the action for lack of subject-matter jurisdiction, noting that the parties were not completely diverse when the suit was filed. The district court granted that motion to dismiss. The plaintiff then appealed.

The main issue on appeal was how the court should treat—and thus review—the dismissal decision. Did the district court enter a final judgment that it then deemed void under Federal Rule of Civil Procedure 60(b)(4)? Or was the action dismissed for lack of subject-matter jurisdiction under Rule 12(b)(1)?

The Sixth Circuit held that the dismissal was one under Rule 12(b)(1). Rule 60(b)(4) applies only to final judgments. The district court’s decision left open the amount of interest, fees, and punitive damages. The decision was therefore not final. So Rule 60(b)(4) couldn’t apply.

In so holding, the Sixth Circuit held that an unspecified award of punitive damages precludes finality. The plaintiff argued that punitive damages should be treated like attorneys’ fees, as an outstanding issue of attorneys’ fees does not preclude finality. But attorneys’ fees don’t preclude finality because they are viewed as separate from the merits. Punitive damages, on the other hand, “are bound up in the merits of the claim.” This lack of separation meant that an unspecified award of punitive damages was more analogous to a decision on liability that leaves the amount of compensatory damages unresolved. And that latter kind of decision is “a paradigmatic nonfinal order.”

Beanstalk Innovation, Inc. v. SRG Technology, LLC, 2020 WL 4785545 (6th Cir. Aug. 18, 2020), available at the Sixth Circuit and Westlaw.

The Ninth Circuit on Appeals From Garnishment Orders

In United States v. Swenson, the Ninth Circuit held that parties can appeal orders disposing of garnished funds.

Swenson arose out of a fraud prosecution that resulted in a restitution order of over $180 million. In its efforts to collect the restitution, the government garnished a bank account containing the Social Security benefits of the defendant’s wife. She objected to the writ of garnishment, arguing that the funds were exempt from garnishment. But the district court rejected her objections.

Before the district court could enforce the garnishment order—that is, order that the garnished funds be disbursed—the garnishee filed her notice of appeal. After oral argument before the Ninth Circuit, the parties suspended the appeal and returned to the district court. There, the district court entered an order disposing of the garnished bank account.

The Ninth Circuit held that these further district court proceedings secured its appellate jurisdiction. The circuit’s law was not clear on when parties can appeal post-judgment orders in a debt-collection proceeding. But the order disposing of the bank account was sufficiently final. Once the district court enforces the garnishment (or terminates it), the relevant post-judgment collection proceeding is over, even if the underlying action is not. So the parties to that proceeding may appeal. The Ninth Circuit thus avoided deciding whether the parties may appeal before the final disposition order.

On the merits of the disposition order, the panel split. The majority held that the government could not garnish the Social Security benefits. Judge N. Randy Smith concurred only in the jurisdictional holding, otherwise contending that the funds were subject to forfeiture under the Mandatory Victims Restitution Act.

United States v. Swenson, 2020 WL 4814151 (9th Cir. Aug. 19, 2020), available at the Ninth Circuit and Westlaw.

The Third Circuit on Reviewing the Refusal to Consider Late-Filed Immigration Appeals

In Abdulla v. Attorney General, the Third Circuit held that it lacked jurisdiction to review the Board of Immigration Appeals’s refusal to consider a late-filed appeal, as no manageable standards existed to review that decision.

An immigration judge ordered the petitioner in Abdulla deported. He had 30 days to appeal that decision to the Board of Immigration Appeals. But he waited two-and-a-half months. The delay was apparently due to the petitioner’s original counsel not filing an appeal and the petitioner’s efforts obtaining new counsel. The petitioner asked the Board to allow the late appeal, as the Board can certify a late-filed appeal for review. But the Board refused to do so and dismissed the appeal. The petitioner then sought review in the Third Circuit.

The Third Circuit held that it lacked jurisdiction to review the Board’s refusal to certify the late-filed appeal. Under 8 C.F.R. § 1003.1(c), the Board has discretion to review a late-filed appeal. A court of appeals can review that decision for an abuse of discretion only when the law provides “meaningful standard[s] against which to judge the agency’s exercise of discretion.” The Third Circuit found no meaningful standards in the law:

Section 1003.1(c) provides that the [Board] “may” self-certify an appeal “in its discretion,” without any limiting language, meaning that there is no standard by which we can review the [Board]’s exercise of discretion. Nor do other regulations or statutes provide us with a benchmark for review of this agency action. So we lack jurisdiction to review this discretionary decision.

And although the Board has allowed late-filed appeals in “exceptional circumstances,” the Third Circuit found no settled course of adjudication—that is, prior decisions establishing meaningful standards—in the Board’s decisions.

Abdulla v. Attorney General, 2020 WL 4875310 (3d Cir. Aug. 20, 2020), available at the Third Circuit and Westlaw.

The Fifth Circuit on Designating a Denial of Reconsideration in a Notice of Appeal

In Wiener, Weiss & Madison v. Fox, the Fifth Circuit held that a notice of appeal designating the denial of a motion for reconsideration was sufficient to appeal the underlying summary-judgment decision.

Under Federal Rule of Appellate Procedure 3(c), parties must “designate the judgment, order, or part thereof appealed from.” The appellant in Wiener, Weiss designated the district court’s final judgment, its amended judgment, and its denial of reconsideration. But on appeal, she sought review of a summary-judgment decision made over a year before any of those designated decisions.

The Fifth Circuit noted that Rule 3(c) existed to give notice of what a party intends to appeal. “So where an appellant notices a particular judgment, [the court] may not review other judgments ‘which are not expressly referred to’ in the notice of appeal, unless ‘the intent to appeal can be fairly inferred, and [] the appellee is not prejudiced or misled by the mistake.’”

The appellant in Wiener, Weiss had given sufficient notice. The motion for reconsideration addressed the earlier summary-judgment decision. Designating the denial of reconsideration thus gave sufficient notice that the summary-judgment decision was at issue in the appeal. Further, both parties had briefed the issue, so no one was prejudiced by any defect in the notice.

That this was ever an issue is silly. Designating the final judgment alone should have been enough to bring in all prior decisions that merged into the final judgment. And no one can be surprised that the plaintiff wanted to appeal the summary-judgment decision. Proposed amendments to Rule 3 will hopefully avoid any issues with the orders designated in a notice of appeal.

Wiener, Weiss & Madison v. Fox, 2020 WL 4914014 (5th Cir. Aug. 21, 2020), available at the Fifth Circuit and Westlaw.

Quick Notes

In Perez v. Parker, the Seventh Circuit held that a dismissal without prejudice was final and appealable because the statute of limitations had run on the plaintiff’s claim. Courts often say that dismissals without prejudice are not final because the plaintiff can refile the dismissed claims. But when refiling would be otherwise barred, courts will often treat the dismissal as final. That was the case in Perez.

Perez v. Parker, 2020 WL 4783899 (7th Cir. Aug. 18, 2020), available at the Seventh Circuit and Westlaw.

In L.W. v. Jersey City Board of Education, the Third Circuit held that it lacked jurisdiction to review a decision remanding a dispute to a state administrative law judge. The plaintiff in L.W. sued the local board of education for denying her special education assistance. A state administrative law judge ruled for the board. On appeal to the district court, that court identified several gaps in the record. That court accordingly remanded the dispute for a due-process hearing and the resolution of other open issues. The plaintiff then appealed.

The Third Circuit concluded that the district court’s remand order was not appealable. Remands to administrative agencies are generally not final, appealable orders. An exception to that general rule exists when the district court conclusively resolves an issue and remand might preclude any future appellate review. But the order in L.W. did not fit this exception; the district court had not conclusively resolved anything, and the parties could appeal again after the proceedings on remand.

L.W. v. Jersey City Board of Education, 2020 WL 4814038 (3d Cir. Aug. 19, 2020), available at the Third Circuit and Westlaw.

In Reynolds v. Municipality of Norristown, the Third Circuit dismissed a qualified-immunity appeal that challenged only the validity of factual disputes. The opinion is short on details. But the defendants’ appeal challenged only “the district court’s determination of what specific officers did or did not do.” That’s improper. The Third Circuit accordingly held that it lacked jurisdiction over the appeal.

Reynolds v. Municipality of Norristown, 2020 WL 4816357 (3d Cir. Aug. 19, 2020), available at the Third Circuit and Westlaw.

And in United States v. Campbell, the Eighth Circuit held that minor, non-substantive amendments to a judgment in a criminal case did not start a new appeal period. The district court in Campbell initially entered a judgment stating that the defendant’s sentence was to run concurrently with any sentences imposed in two pending state criminal cases. Ten days later, the district court amended the judgment to add the case numbers for those two state cases. The defendant filed his notice of appeal shortly thereafter.

An issue arose as to the appeal’s timeliness. If the time for appealing (14 days, since this was a criminal case) was calculated from the amended judgment, the defendant’s appeal was timely. But if calculated from the original judgment, the notice of appeal was late. The Eighth Circuit held that the amended judgment did not re-start the appeal clock. The amendment “did not disturb or revise legal rights and obligations, because it did not make a material change.” The notice of appeal was accordingly late. The court remanded for the district court to consider extending the time to appeal under Federal Rule of Appellate Procedure 4(b)(4).

United States v. Campbell, 2020 WL 4814124 (8th Cir. Aug. 19, 2020), available at the Eighth Circuit and Westlaw.